>> judge jeanine: there was a time in america when families ate dinner together. they worshiped together. people could tell the difference between the truth and a lie. and you could buy a decent red hello and welcome to "justice." i'm judge jeanine. that was then, and this is now. enter the obama administration. four americans killed by islamic militants our ambassador already injured dragged through the streets of benghazi on the anniversary of 9/11.

our embacy walls breached in cairo. the middle east on fire with chants of "death to america." now, the obama administration tells us with a straight face this is all the result of a spontaneous reaction to a video. >> i also want to take a moment to address the video circulating on the internet that has led to these protests. n. a number of countrys. >> this is a fairly volatile situation and it is in response not to united states policy, not to obviously the administration, not to the american people. it is in response to a video. a film. >> it was a spontaneous reaction to what had just transpired in cairo as a consequence of the video that people gathered outside the embassy and then it grew very violent. >> judge jeanine: but any one who knew the difference between the truth and a lie knew this had all of the ear marks of

al-qaeda. people do not bring rocket propelled grenades to a peaceful protest and this week evidence that there was no protest even occurring at the time of the attack. so why does it take nine days for the obama administration to finally admit what we all already knew, that this was a preplanned well coordinated act of terror by al-qaeda? and why the reluctance to admit it? why does the president nine days later say he has to find out the facts before he draws the conclusion? >> we are still doing an investigation and there are going to be different circumstances in different countries so i don't want to a speak to something until we have all of the information. >> judge jeanine: oh, now we do an investigation? after the administration concluded it was a spontaneous act in response to a video? why not admit from the start that we were ill prepared on 9/11 in a country that housed

some of the most violent antiamerican mill at the didn't have the intelligence report comprehension of the danger to protect our citizens. would that truth violate the white house narrative that the killing of bin laden was finally an end to terror? would it interfere with the election narrative of the white house? now, for more on the investigation here is jennifer griffin. >> an fbi team assigned to investigate the murder of u.s. ambassador chris stevens is looking into whether the group of about 100 attackers armed with rocket propelled grenades had inside help from the private security contractors who the state department hired to guard inside the benghazi consultate. senator susan colins asked the director of the national counter terrorism center matthew olson this very question at a committee hearing this week. the state department hired blue mountain group a private security group out of wales to vet and hire local guards for

the consultate. the contract was worth nearly half a million dollars. indications that the local guards may have beencation the consultate were first revealed in an online post by shawn smith on a gaming website where he went by the name vial rat. "assuming we don't die tonight we saw one of our quote police that guard the compound taking pictures. he could have been referring to the libyan government police that guarded the periphery of the compound. today the compound of ansar al-sharia was tarted. the safe house moved one mile away from the consultate were ambushed from a second location and that may mean they were killed by those tipped by

insiders. >> judge jeanine: gentlemen, good evening. and thank you for being with us. >> hello. >> judge jeanine: all right, i will start with the attorney general. can you tell us why the administration was so slow in identifying this as an act of terror? >> you know, i assume, judge, that the reason they did what they did was, one, because they thought they could get away with pulling the aol over the eyes of the american people and two, they are afraid to have the weakness of their policy towards libya and to other key -- toward other key countries in the middle east exposed. you know, we are are sending the fbi over there now. why is that? why hasn't the fbi and other law enforcement and other u.s. agencies been there for the last year helping the good libyan people and there are good libyan people, help build the kind of law enforcement, national security

infrastructure that would prevent this lawlessness. >> general, you were the deputy attorney general for the united states. by sending the fbi in, is the administration admiting that this was not an act of terror, that this is a crime that should be prosecuted and if it is, are the individuals going to be brought to new york city to be tried in the southern district? i mean it is not a war apparently right now. where does this go? >> why the fbi is there is a great question, judge. because the fact of the matter is this is not a mere crime. whether or not it violates u.s. law is another issue. but what is the fbi going to do there? first of all, you have a so-called crime scene which is really the scene of an act of war that has been completely contaminated. the site has been overrun. and even if they were to find the people that are responsible and those kinds of investigations can take years, bob muller the director of the

fbi and i worked together on pan am 1 o 3. that investigation took years to piece together responsibility to prove somebody guilty beyond a reasonable doubt. >> judge jeanine: maybe that does fit into the white house narrative if you do an investigation that takes years we don't have to declare an act of war or admit that it was what it was. what say you, christian? >> i think that is right. this white house wants to do anything to distract from the fact that their foreign policy is basically a failure. going back to the early days of the obama administration. we heard this from the national security council staffers thought that obama was an international figure and he was going to transform just by being himself all of our relations with muslims and other countries and go and apologize with things we done in the past and defend ourselves after 9/11 which is what the president did right there in the epicenter of this crisis in cairo where he had his apology speech. that was supposed to change

everything. that and killing bin laden the tide of war is receding. all of this disproves that the obama foreign policy is working. >> judge jeanine: let me throw up a commercial here that guys, i don't know if you can throw it it up on the screen. the united states government, gentlemen, has bought a commercial in pakistan that is basically apologizing for the video. it is a commercial. do we have it, guys? >> since our founding the united states has been a nation that respects all faiths. we reject all efforts to denigrate the religious beliefs of other os but there is absolutely no justification to this type of senseless violence. none. >> let me state very clearly and i hope it is obvious that the united states government had absolutely nothing to do with this video.

>> judge jeanine: gentlemen, have you heard of the united states government purchasing advertising time in other countries to reject or apologize for a video? >> it is shocking and provocatively weak. going out there and doing this, one thing that these terrorists are doing is not just trying to push america out of the world, they are trying to cow reformers and silence reformers and secularists in their own country. we don't even recognize that and don't even recognize islamism exists as a political forum and recognize that apologies don't work. going and apologizing for america didn't solve all of the unrest in the muslim world. it is shocking but also profoundly ineffective. >> judge jeanine: final question to you. have you seen the united states government when our people have again murdered go in and apologize for a video and pay for the ad time? >> the problem with all of this

is and i think it is bad politics on the administration part. the american people know there is no excuse for killing people for this kind of behavior and if we continue to withdraw into a cowed position of weakness and appear to be that way we are only encouraging more of this kind of conduct. >> judge jeanine: thanks so much for being with us this evening. >> thank you, judge. >> judge jeanine: with me is journalist and middle east expert author of the book they must be stopped. brigette gabriele. glad to have you back. >> thank you. >> judge jeanine: what is your response to nine days after the attack the obama administration says gee, maybe it wasn't spontaneous, maybe it was preplanned. >> he is trying to save face. while he made the american public believe once we killed osama bin laden our problems with the islamists is over and basicallyfold the american public because now the american

public is waking up to realizing we not only have a problem with al-qaeda. the muslim brotherhood in egypt and libya and different groups that share al-qaeda's ideology. there was a politician who actually was working with the muslim brotherhood front who we assigned to protect our embassy in libya. >> judge jeanine: and is that the tweet that either shawn smith said that atombing tha ai survive the night because he had seen one of the libyans take a photograph that night. >> now, knowing that actually the politician told the security group that stop, do not act because they are going to be a planned attack. put your arms down, do not do anything. so our president assigned a muslim brotherhood front to protect our people in our embassy in libya. >> judge jeanine: and ultimately it was not protect. >> and ultimately he basically betrayed his fellow americans and their blood is almost on

his hands as much as the blood of those who we love are at the hands of the islamists as well. >> judge jeanine: what do you you think of the fact there is now some evidence that indicates this was being run by an individual formerly in guantanamo that we released to libya. >> the frustrating part frustrating us in the intelligence community for a long time. we have known and cap pureed back over 12% of those we released from gitmo we recaptured them on the battlefield. what people need to remember are those people in gitmo are diehard jihaddist murderers, barbarians. they want to kill. we we leas release them and tho back to killing. that is why their own countries don't want them. >> some of them, there are no countries who will teak the individuals. >> they will not take them because they know better. that is why we cannot close gitmo. we have diehard jihaddists that

we need to treat them -- >> judge jeanine: if they are organizing attacks on americans, what do you think of the fact that obama and hillary purchased ad time in the middle east to apologize for the video? >> shameful and insulting to it the american public and as a taxpayer who pays my taxes to this government i'm insulted and live individual that my president will use my tax dollars to apologize to barbarians who killed our people. >> judge jeanine: and there was an effort on the part of the house to stop funds going to some of these countries it was defeated overwhelmingly. what do you think of that? >> the american public needs to speak up now. elected officials unless they hear from the people will not do anything. we have a petition gathering hundreds of thousands of signatures. unless we put pressure on elected officials to do the right thing they will not do it on their own. >> judge jeanine: thanks for being with us. >> thank you.

>> judge jeanine: coming up, should the military respond to the terrorist attacks in libya. later, only 45 days until the election and the polls couldn't be closer. stay with us.

>> judge jeanine: incompetent en incompetenten ce and negligence words my next guest used to describe the lack of security at our consultate in libya where ambassador stevens and three others were killed. with me is former special

operations deputy commander major general timothy haig. thank you so much for being with us this evening. >> sure, hi, judge. >> we are now you hearing that the administration narrative of this being a spontaneous reaction to a video is really not what it was initially said to be. what do you think of that? >> i think this to understand this in its entirety you have to go back three months and look at what happened in june in north wadiristan we made a strike on the number two al-qaeda guy. he was libyan and he was like the renaissance man in al-qaeda. he was a religious scholar. he could issue fatwas. he was a good tactician and propagandaist and when lost him there were car bombs et cetera

in libya. now, fast forward and you can understand what happened. >> judge jeanine: and wasn't there indeed, general, a call as a result of his death i believe by the predator drone that there was a call to kill the crusader? >> the night before i'm ayman al-zwahiri said his blood is calling to you with what are you you going to do to avenge your brother and kill the crusader and next day is when it all broke loose. >> do you think the administration not even commenting on the fact there was a 42 minute video or a call to libyans to i a tack the americans and attack the infidel and atrack the crusaders isn't their failure to even reference that and instead reference a video on

youtube as the reason, what were they thinking? >> i think it may be that they just didn't put two and two together which is unforgivable frankly and four people and do great seals died as a consequence. >> judge jeanine: no question about that. it is my understanding, general, that on the morning that he died ambassador christopher stevens indicate to the libyan professor that the security of the consultate was not enough and there was a big lack of security and, of course, now four of them are dead. >> that is one of the big questions, judge. why was he even there in benghazi. hundreds of miles from his embassy. and he was is apparently separated from his security detail. what was all of that about? a lot of questions there. >> judge jeanine: and general, finally, do you consider this an act of war? should we have responded militarily? >> well, the time for that is

coming, i think you need to as certain clearly who is responsible and then they need to be taken out. but we are not there yet. it is definitely an act of war. it is not a law enforcement issue as was described earlier. >> judge jeanine: when you say it is not a law enforcement issue you don't think it is something for the fbi to go in and investigate remembering, of course, that the fbi was reluctant to go in because it wasn't safe. >> well, they are a great agency and great law enforcement and investigative agency but this is still part of the continuum of pardon the phrase, war on terrorism. >> judge jeanine: coming up, 45 days to the election and polls show a slight obama lead. but don't let the media fool you. romney isn't out just yet. and later the infamous jeffrey mcdonald case.

the green beret army doctor sentenced to three life terms. he is back in court. find out why he could be granted a new trial. stay with

>> judge jeanine: just 45 days until the presidential election. polls showing president obama ahead in key battleground states but in politics even a day can be he a game changer. brad is a former deputy assistant to president george w. bush from washington, d.c. and brian benjamin is an obama delegate. gentlemen, welcome be and thanks for being with us this evening. >> thank you. >> judge jeanine: brad, i will go to you first. romney, president romney initially started talking about what happened in libya with the death of our ambassador are and four and three other americans

but he is not really discussing that now. does that benefit him. >> well, he should be. the president has made major blunders in the response. i believe that he lied to the american people. i also believe other members of his administration out and out lied to the american people like u.n. ambassador rice and secretary of state clinton. this is something that romney h should be touching on. the u.n. general assembly meets in new york and i believe romney should be there working with world leaders and make an address as to what foreign policy would look like. any missed opportunity is one you can't make back in the next 45 days. this is about the economy and also about foreign policy. >> judge jeanine: i misspoke when i said president. i meant running for president mitt romney. let me ask you this, brian. what we have got is a situation where the president appears to be ahead in some of those

battleground states. >> in pretty much all of them. >> judge jeanine: in many of them if not all of them. >> correct. >> judge jeanine: and he basically made a decision as a result of what happened in the middle east to just continue with politics as usual. he went to vegas. in fact, he did pimp with a limp interview you and doing fundraisers and all that stuff. is this a smart approach by him? >> first of all, they are both doing fundraisers but let's be clear. >> judge jeanine: but he is the president of the united states. >> and running for reelection and mitt romney is running against him. let's look at the facts on the ground. let's not forget president obama got osama bin laden and kept us safe for the last three and a half years. >> he hasn't kept us safe. we just had a terrorist attack and our ambassador was killed with three other american that they lied about. there has been a terrorist attack. >> first of all, you are cutting me off. >> judge jeanine: do you think they lied, brian? >> i don't know. let's let the facts bear themselves out. this is the whole romney campaign of shoot first and ask

questions later. >> judge jeanine: did the president shoot first and nine days later admit that it was al-qaeda? did the president shoot first? >> the president took his time. >> judge jeanine: no, he said it was a spontaneous attack. >> let's all step back for a second. it was an unfortunate tragedy and the fact that the romney. >> judge jeanine: we all know that. >> the fact that the romney campaign is trying to politicize it shows how desperate they are. >> judge jeanine: i'm asking about the president. >> what about the president. >> find out the facts. >> judge jeanine: brad -- >> you are asking about. >> the president lied and then he thought that his lie would not be exposed and it was exposed and jay carney he sent out there and he said this is all about a video and then just the other day he said it is self-evident. that is his words that this was a terrorist attack. he lied first and then got caught in the lie and then he came clean with the american people. >> it that's false. >> we are not buying it. >> judge jeanine: what is false about that statement? >> that the president lied. the president didn't lie. this is all -- >> he doesn't have superior information than mitt romney

has? >> brad, let's talk about what is really serious here. the american people have to make a decision in 45 days and the question is do the american people feel that president obama has kept them safe on foreign policy. mitt romney and paul ryan have no foreign policy experience whatsoever. the only foreign policy. >> this president had no foreign policy experience when was elected. >> the only experience he has is going overseas and blundering that. so let's be clear. >> judge jeanine: brad, respond to that. >> when president obama was elected he had virtually no foreign policy experience. as a matter of fact, he was a no show at the hearings that he was supposed to be part of as part of the intelligence committee. this president has shirked his responsibilities and by the way, president bush you always like to talk about president bush, i know as a fact because i scheduled it every morning he had an in person in tell briefing both with the cia and fbi directors. he didn't just read his report. he was briefed in person. >> judge jeanine: we are going to wrap here. brian there is truth to that.

he skipped an intel meeting that day. >> okay. can we talk about the election. >> judge jeanine: no, no, no. i think the election really the issue is whether or not he hass addressed the issue with the strength that he should. anyway, i want to thank you brian and brad. >> thank you. >> judge jeanine: we will come to a wrap here. coming up, jeffrey mcdonald spent the last three decades behind bars for killing his family. now, he says new evidence should free him.

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>> judge jeanine: 33 years after the murder trial of former green beret doctor jeffrey mcdonald the man convicted of killing h his pregnant wife and two young daughters is back be in court. he might soon be a free man. take a look. >> i did not murder nor did i hurt my family in any way. i was innocent in 1970 and i'm innocent now. >> reporter: a jury disagreed and found jeffrey mcdonald guilty of the murder of his pregnant wife and two young daughters more than 30 years ago. the army doctor seemed to have it all. married to his high school sweet heart, two beautiful girls on a baby on the way. on the morning of february 17, police found a scene of horror. the bludgeoned bed bodies of his wife and children and blood everywhere. the killings happened here at their ft. bragg, north

carolina, home in 1970. mcdonald himself suffered only minor stab wounds. he acted like a celebrity at first. even appearing on late night tv raising the suspicions of his wife's family. he claimed four drug crazed hippies broke into his house and knocked him unconscious and stabbed his family to death. his father in law believed he was innocent. then things changed. >> i became furious at the fact that he said he had all those wounds that i know he didn't have. >> judge jeanine: the story captivated the nation and was the subject of a best selling book and a tv mini series. mcdonald was convicted nine years later and ordered to serve three life sentences. mcdonald is 68 years old now and still proclaims his innocence. this week a federal judge considers whether to grant the new trial based on dna evidence and witness testimony.

that dna evidence three hairs tested six years ago found at the crime scene do not belong to mcdonald or his family. in addition, potential bomb shell testimony from one eugene spokely who claims his sister a drug addict confessed she was present at the killings. helena strokely died in 1983 but mcdonald's defense team says her confession proves he is innocent. but the author of fatal vision believes nothing has changed. >> the jury made the direct decision in 1979. it has been upheld by every appellate court that ever looked at that time for 33 years. >> judge jeanine: with me now is bob stevenson, colette mcdonald's brother. bob, thank you for being with us. >> thank you very much for having me. >> and, of course, i -- are we all so many years later are offer our condolences for the

death of your sister and her two children and she was pregnant with another. initially, bob, you thought that mcdonald was innocent and you changed your mind. when did you change your mind and why? >> the day after the murders it began. the fact was as we first went down there we stood in the lobby along with perry mcdonald, his mother, my mother, and my wife. perry mcdonald as my mother and she spoke said how do you know he didn't do it. i didn't make much of that. a few moments later we entered the bedroom he was ness or the hospital room and he sat up bright eyed and bushy tailed. looked better than any one of us. almost had a leering smile on his face. his wees were bright. his wounds were almost nonexistent. his flirtatious nature was there immediately.

my wife had been a fur coat model and the first thing he said to her was hey, give us one of those twirls, huh? he set me on edge immediately. >> judge jeanine: bob, he -- his wife, his two children dead, stabbed with ice picks and knives. >> yes. >> judge jeanine: what kind of injury did he have and was it ultimately shown that they could have been self-inflicted? >> yes, the other wounds were entirely superfy shall. the numbers that he claimed varied and changed. the only wound that had any form of substance was one wound inflicted with an ice pick lower part of the lung and one which a doctor as skilled as he and trust me he is a skilled doctor could easily have done in order to save himself. >> judge jeanine: you were at the hearing this week. >> yes. >> judge jeanine: the federal court hearing that is reviewing that is now -- >> yes. >> judge jeanine: give me your take on the evidence and where did it bring you emotionally

and what do you think will happen? >> frankly, i was shocked and startled to see what the cards were that he held in his hand. he didn't have any. the claims were under testimony and the brit claims were shown to be false. he was the man who said he was present during the transportation of helena stokely and overheard a conversation in which he admitted that he wasn't there. >> a u.s. marshall who is now dead who said that a woman admitted to being there when the murders occurred but he is dead. >> and then he said also he was present under the questioning that was done by jim blackburn when alleged that blackburn had threatened her with prosecution if she admitted to having been there. again, he wasn't in the room and what turns out that i never knew is marshalls are not allowed in a room under those circumstances unless there is a violent person. >> unless there is a risk are of danger. let me ask you, what do you think is going to happen, bob?

>> first of all, this is you know more about 2255. this is a civil case and in a civil case the burden of proof is extremely heavy. even if this evidence were to get by rule 2255 gate keeping the fact is that as i understand it i will use it in quotes "the evidence must be clear and convincingion." >> judge jeanine: to prove that you are actually innocent. >> that's correct. and they couldn't possibly, this hand of cards could not possibly stand up under that withering requirement. the bar is too high. >> judge jeanine: we'll see what happens. bob stevenson i want to thank you for being with us. and a young man is cross examined by the convict he says stabbed him and killed his mother. how does that happen? stay with us. [ male announcer ] if it wasn't for a little thing called the computer,

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you were just five years old. that took place this week in the trial of a man serving as his own attorney and he is being charged with killing the roommate of a woman he has already been convicted of stalking. he was not identified for the murder until dna tests were done. with me now is attorney michael tread' way who used to represent the defendant. michael, thanks for being with us. >> thank you. >> judge jeanine: why does this defendant think that he should represent himself not even going into any one who represents himself has a fool for a client. what is that all about? >> well, he has represented himself throughout the majority of this litigation. most recently last week he fired his court appointed attorneys and elected to represent himself because he had a basic disagreement about strategy during the trial.

>> judge jeanine: what strategy did he want to conduct? you were his attorney. the judge has given you permission to speak. what was that strategy? >> well, i really can't go into what strategy he wanted to employ. i can say that the strategy he has been employing over the last two weeks appears to be vindication of h his relationship with the woman he is accused of stalking. >> judge jeanine: and he served ten years in privat prison for stalking that woman, correct? >> correct. >> judge jeanine: that is a rather high is sentence, isn't it? gives you the sense maybe there was more to it? >> that was the maximum sentence for two telephone calls five years on each call and he served every day of it. obviously the backdrop was this murder. >> judge jeanine: and why is it that all of a sudden they were able to it indict him for the murder? >> in december of 2009 a dna match allegedly was made

between a hair on the body of carmen smith the murder victim and mr. daker. >> and this murder victim, the mother was a roommate of the woman ha he had been stalking. is that, correct? >> that's ate woman he had been accused of stalking, yes. >> judge jeanine: and the idea of his cross examining the boy who was stabbed 18 times at the age of five, did -- how do you feel about that as an attorney who represented daker? >> that is one of the real pitfalls of self-representation. you make it too personal. it is you versus the person that believes is you stabbed him 18 times. although as a child the witness could not identify the attacker. he now positively believes mr. daker did it and that is just a little too personal. >> judge jeanine: and were you

in the courtroom when that cross-examination by your ex-client was conducted? >> no, when i was relieved of the representation i felt it wise to stay out of the courtroom. i haven't been back. my partner and my son jason treadaway has been there as stand by counsel to assist mr. daker. >> judge jeanine: i understand he is an extremely competent individual, very smart and is doing a relatively good job in the courtroom. >> well, mr. daker is a gifted amateur. we could put it that way. highly intelligent. self-educated in the law. but that comes with its own drawbacks. he had no mentoring, no protesser or older lawyer to guide him and he makes mistakes and he doesn't know when is making them and that has a potential for his peril. >> judge jeanine: and aside from the fact that your son is now representing him, do you

think that the prosecution can prove this case beyond a reasonable doubt? >> well, that is going to be for the jury and whatever they decide i hope it speaks the truth. >> judge jeanine: we all hope so, too. thank you so much for being with us. >> good night. >> judge jeanine: good night. and coming up our expert panel on theem daker and jeffrey mcdonald cases. stay with us.

>> judge jeanine: we are back with our expert panel. criminal defense attorney and fox news contributor arvydas thundershower adale penny la.

gentlemen, welcome. let's go right to waseem daker. all right. what do you think the jury is is thinking, mr. defense attorney arthur ayadala, as the guy charged with stabbing you 18 times when you were five and killing your mother cross examined you? >> it is tough and those jurors they are are going to sympathize with the victim. the biggest example of that here in new york city was the long island railroad shooter harland ferguson. so when i pulled out the gun and i shot you and when i did this. it is a horror show. >> he is supposed so be a smart guy. >> he is not going to connect with the jury and they will not be sympathetic to his cause and ultimately no matter how articulate and bright he may be. it took arthur a long time to become an excellent trial attorney and you don't learn this stuff overnight and as a result of that you really need an advocate who knows what

theses are doing. it is complicated stuff. >> and you heard what the attorney said he is making mistakes and doesn't even know when we were making them. when we were young prosecutors, my dad used to cough. >> judge jeanine: can a defendant say i made the decision to represent my isself but it was ineffective assistance of my counsel. >> i think it helps hip not get an appeal. the first thing people do is say my lawyer was so bad. be ineffective assistance of counsel. you were the counsel and made an educated decision to be the lawyer. >> judge jeanine: and he has the backup lawyer. what you have a guy sent to jail for ten years, all right, for stalking a woman. what does that tell you two phone calls. what did the cops know back then that he ended up with ten years? >> he was a sexual stalker. more importantly, him representing himself is an obscene gesture on the part of

the criminal justice system. he gets to reoffend the victims in the persona of a attorney. he is really a perp. >> judge jeanine: the only problem is the right of confrontation. what is the count constitutionl issue here. >> that is a lawyer question. speak to the lawyer question. >> judge jeanine: you brought it up, vern. >> i think it is obscene that he is allow to terrorize that person. >> judge jeanine: i agree. >> i have been cross examined by a couple of defendants and yourself also. by defendants. and in that kind of situation it seemed to me from where i sat in the witness stand that the judge was put in an awkward position of having to occasionally intercede to protect the case so that if he made a bad mistake the judge would try to correct it. >> when the defendant

represents himself in the middle of a trial a defendant hired me. he was representing himself. the judge told me after the trial was over. he goes arthur when you walked into the courtroom it was like jesus christ walked in. it was the worst thing for a judge. dr. wade season right on. judge is supposed to be balancing the defendant's rights but can't let his courtroom turn into a circus. >> you know what else, judge and you of all people will sympathize with this as the great victim's advocate you were when you wer, this testimo personal. they were crying. they couldn't make eye contact with him. a very compelling thing to have the person who perpetrated the crime to be asking you the question. >> look at him in tears. his mother was killed by this individual. >> allegedly. >> allegedly. >> judge jeanine: allegedly, okay. >> allegedly, your honor are. >> judge jeanine: he believes his mother was killed. >> 95.

i believe 1995 was the murder. they don't indict him until 2009 saying that they just matched the hairs from the dna. >> but he hadn't been convicted sew wasn't in codus. >> he had been convicted of stalking the mother's roommate. what took so long. dna has been around a long time? >> if they don't make the codus connection it is lost in the system. >> that is the national dna database. >> judge jeanine: what we are saying is that once you are felon convicted your dna is in a national data bank. >> supposed to be. >> judge jeanine: and it was. >> sometime there's is a delay. >> judge jeanine: they just have to submit the evidence from the crime itself to see who it match is. took them awhile to do that. shame on them for that. >> it also shows how important a single hair could be whether it is on ms. smith's body or remember the west memphis three that were recently released just one hair and mr. mcdonald. >> judge jeanine: let's go

right to mcdonald. doctor, i will stay with you. new hairs allegedly, six years old but saying there is new dna evidence, one under the body one of the victims and two some where else point to the fact that mcdonald did not do it. >> that was known in 1970 when the investigation was done. at that time in 1970 it was before dna and hairs were looked at by microscopic analysis and it was poorly done. a lot of those microscopic. >> the fact that the hair doesn't match mcdonald does that mean he shouldn't basis point do it it? >> one of the hairs was under one of the baby's finger nails which makes it kind of important. interesting to know if all of the three hairs were from the same individual and whether they were male or female. >> on the issue of dna something needs to be addressed. it is true there were the three unknown dna fiber hairs, however, his dna was all over

the place. is the first place. >> he lived there and he was wounded. >> they were on specifically the fabric and everything else. >> this is what i want to say. army c.a.d. did an excellent job because they had a statistical anomaly. even though they didn't have dna in 1970 they had blood typing and each victim was different. >> judge jeanine: what does that tell you? >> there is only one person and one person only could have committed that crime and that was jeffrey mcdonald. >> judge jeanine: reversed, yes? no? >> no. >> yes, or no? >> i'm not a lawyer. >> the forensic evidence is not sufficient to reverse it. >> judge jeanine: i agree. there will not be a new trial. that's it for us tonight. thanks for joining us. follow me at twitter judge